Ashcraft v. State
| Decision Date | 20 March 1996 |
| Docket Number | No. 10-95-206-CR,10-95-206-CR |
| Citation | 918 S.W.2d 648 |
| Parties | David Bradley ASHCRAFT, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Shelly D. Fowler, Cleburne, for appellant.
Dale S. Hanna, District Attorney, David W. Vernon, Asst. District Attorney, Cleburne, for appellee.
Before CUMMINGS and VANCE, JJ.
David Bradley Ashcraft, the appellant, was charged by indictment with two counts of aggravated sexual assault of a child and one count of indecency with a child. TEX.PENAL CODE ANN. §§ 21.11(a)(1), 22.021(a)(1)(B)(i) (Vernon 1994). The indictment was based upon allegations from K.A., Ashcraft's twelve-year-old daughter, that Ashcraft had sexually assaulted her on two separate occasions. He pled not guilty to all three counts, and a jury convicted him as charged. The jury assessed punishment at thirty years in prison for the two counts of aggravated sexual assault of a child and twenty years in prison for the indecency count.
Ashcraft appeals on two points. He first complains that the court erred by denying his motion for new trial, which was based on the newly discovered evidence that K.A. recanted her allegations against him. His second complaint is that the court erred by admitting a photograph of K.A.'s genitalia because the prejudicial effect of the photograph outweighed its probative value. Because we find that the record supports the court's finding that K.A.'s recanting testimony was false and that the photograph at issue did not present a danger of unfair prejudice that substantially outweighed its probative value, we conclude that the court did not abuse its discretion. We will affirm the judgment.
K.A. testified at trial on March 28, 1995, that Ashcraft sexually assaulted her on two separate occasions: once in April 1994, and once in June 1994.
According to the record, K.A.'s mother took a trip out of state sometime in April 1994. As a result, K.A. was alone with her father and her three sisters overnight. After her three sisters were in their own beds, Ashcraft told K.A. to go sleep in his bed "because it was cold." K.A. related that the following events occurred when Ashcraft joined her in his bed:
. . . . .
The record indicates that K.A.'s mother took another trip out of state sometime in June of 1994. One of K.A.'s sister's accompanied K.A.'s mother on this trip, leaving K.A. alone with her father and her other two sisters. As K.A. lay sleeping in her own bed, Ashcraft woke her up by tickling her and told her to go sleep in his bedroom. K.A. testified that the following events occurred when Ashcraft joined her in his bed:
. . . . .
. . . . .
. . . . .
In point one, Ashcraft contends that the court erred by overruling his motion for new trial. That motion was based on the newly discovered evidence of K.A.'s recantation of her trial testimony.
The standard of review for the denial of a motion for new trial based on newly discovered evidence is abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993). Motions for new trial based on newly discovered evidence are not favored by the courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225-26 (Tex.Crim.App.1987). We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. Id.
A trial court's decision whether to grant a motion for new trial based on newly discovered evidence has been governed by three different sources in the last decade, depending on when the offense was committed. Prior to the adoption of the Texas Rules of Appellate Procedure, which became effective September 1, 1986, motions for new trial were governed by article 40.03(6) of the Code of Criminal Procedure, which provided in part that, Act of May 27, 1965, 59th Leg., R.S., ch. 722, 1965 Tex.Gen.Laws 317, 476, repealed by Act of May 27, 1985, 69th Leg., R.S., ch. 685, § 4(b), 1985 Tex.Gen.Laws 2472, 2473 (emphasis added).
Rule of Appellate Procedure 30(b)(6), which replaced article 40.03(6) for cases in which the offense was committed on or after September 1, 1986, stated in part: TEX.R.APP.P. 30(b)(6), 49 TEX.B.J. 564 (1986) (emphasis added). The notable difference in Rule 30(b)(6) was the change in the description of the new evidence required from "material" to "favorable." Id.
Finally, effective September 1, 1993, the Legislature replaced Rule 30(b)(6) with article 40.001 of the Code of Criminal Procedure, which restores the word "material." TEX.CODE CRIM.PROC.ANN. art. 40.001 (Vernon Supp.1995). Article 40.001 is effective for cases in which the offense was committed on or after September 1, 1993, and provides: "A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Id. (emphasis added). Because all offenses at issue in the present case were allegedly committed after September 1, 1993, the trial court's decision whether to grant Ashcraft's motion for new trial based on newly discovered evidence is governed by article 40.001 of the Code of Criminal Procedure. Id.
The above changes are significant because of the impact they have had on courts' decisions to grant or deny motions for new trial based on newly discovered evidence. They are also important because the Court of Criminal Appeals has not yet decided a case based on newly discovered evidence under article 40.001. Id. The Court's most recent decision involving a motion for new trial based on newly discovered evidence is Moore v. State, in which the Court was called upon to evaluate a trial court's decision to overrule an appellant's motion for new trial based on newly discovered evidence brought under Rule 30(b)(6). 882 S.W.2d 844, 849 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995). In Moore, the Court reasoned, "Because rule 30(b)(6) contains language virtually identical to former Article 40.03(6), we shall review appellant's point of error under the same analysis." Id. (citation omitted). We similarly conclude that because the language of article 40.001 () is essentially a combination of former article 40.03(6) () and former Rule 30(b)(6) (), we should review Ashcraft's point of error under the "same analysis" the Court used to decide cases under article 40.03. See id., see also TEX.CODE CRIM.PROC.ANN. art....
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